Legal correspondent Jess Bravin reports in Friday's Wall Street Journal (subscription required) that the White House has approved a list of crimes for possible use by military tribunals in the future. President Bush signed an order in November 2001 which established the military tribunals, and the Defense Department followed that announcement with a series of procedural regulations. These trials were originally intended for members of Al Qaeda, such as Osama Bin Laden and Ayman Zawahiri, in the event they were captured during the war in Afghanistan. To date, no one has been brought before a tribunal. However, some have speculated that alleged "20th hijacker" Zacarias Moussaoui might be moved to a military tribunal in the near future, given evidentiary and procedural problems in his case. Regardless, this development represents a major step towards the eventual establishment of tribunals, and is another indicator that the Bush Administration does intend to use this legal tool at some time.
The "crimes and elements" rules, which could be announced as early as Friday, aren't expected to allow prosecutions based solely on membership in the al Qaeda terrorist organization. The issue had divided administration officials, some of whom were concerned they might lack proof of specific crimes by some prisoners.
The rules are expected to grant the tribunals jurisdiction over war crimes, but not broader categories such as genocide and crimes against humanity which can occur outside of an armed conflict.
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The rules are expected to allow prosecution for "unlawful combatancy" -- that is, fighting against U.S. forces. President Bush has declared all al Qaeda fighters unlawful combatants. While uniformed soldiers of an enemy nation's army cannot be prosecuted for waging war, Washington contends that members of a terrorist organization such as al Qaeda have no right to take up arms.
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The first trials, which are likely to take place at the Guantanamo Bay Naval Base, may involve lower-level prisoners accused of unlawful combatancy rather than al Qaeda commanders accused of such war crimes as targeting civilians, taking hostages or using prohibited weapons such as poison gas.
Officials want to ensure the system is working well before turning to better-known defendants. Those could include Mr. Moussaoui, should President Bush decide that continuing his civilian trial in Alexandria, Va., poses too many national-security risks.
Moreover, Washington is weighing how to deal with leaders of the Iraqi regime should they be captured in a forthcoming conflict. The al Qaeda tribunals could be a model for war-crimes prosecutions of Iraqis.
Analysis: This final paragraph is something I've been speculating about for some time. In theory, there are several options for trying Iraqi officials after the war:
1) International Criminal Court (unlikely, given the US opposition to this institution)
2) International Criminal Tribunal - Iraq (Similar to the ICT-Yugoslavia, this would be an ad hoc court set up for this conflict)
3) U.S. federal criminal court (unlikely, given the Moussaoui problems)
4) U.S. military court (legally possible, under both the laws of war and the Uniform Code of Military Justice, but not probable)
5) U.S. military tribunal (legally possible if the President amends his original 13 Nov 01 order)
There is nothing stopping President Bush from modifying his 13 Nov 01 order to allow for the use of military tribunals for Iraqi war criminals. The original order was written with Al Qaeda in mind, and the Iraqis would not be subject to this order as written. But the President could sign a second order which broaded the jurisdiction of these tribunals to include Iraq. Ironically, such an order would enjoy better legal support than the current tribunal order. Most of the recent tribunal cases (including Application of Yamashita and Ex Parte Quirin) came out of World War II, and the need to try Japanese and German war criminals after that conflict. The situation in Iraq is far more analogous to those cases than that of global terrorism. Thus, I think the President would have very strong legal precedent behind him if he pursued this course of action.
Moreover, using military tribunals seems appropriate for the trial of war criminals. It's what we did at Nuremberg, and it's seems normatively appropriate for this type of proceeding. I would not be opposed to using military courts for this purpose, but I think that military tribunals may give the U.S. more flexibility in charging offenses and dealing with evidence for which there is no provision in the current Uniform Code of Military Justice. Prediction: we will see military tribunals implemented within a year, both for for Al Qaeda terrorists like Ramzi bin-al-Shibh and for Iraqi war criminals like their general staff and possibly Saddam Hussein (if he's captured alive).